The motion in arrest was properly dismissed on general demurrer, since it shows no facts which would entitle the plaintiff in error to the relief sought.
Indulging the presumption that prevails in favor of the correctness of verdicts and the legality of judgments, we must, at least for the purposes of this case, assume that the defendant in error had a right to have set aside the former judgment on the ground of fraud. It is true that the motion states that it is recited that in the former suit the railroad company paid to petitioner's father and next friend the sum of one thousand dollars, but there does not arise under this record any issue as to whether that fact would prevent her from setting aside the former judgment, or, in and of itself, would compel her to credit that sum on the judgment obtained in the present suit; but the sole point is made that in view of the allegation in her petition as to the recovery and payment of this thousand dollars by the company, and her offer in connection therewith, it is entitled to have the judgment in the second case arrested to the extent of having placed thereon by direction of the court a credit of a thousand dollars. Waiving any question as *Page 100 to whether plaintiff in error has pursued its proper remedy, its right to have the credit placed on the judgment is to be determined by a proper construction of that part of the petition of the defendant in error, wherein mention is made of her consent to have the judgment credited. Her statement is, not that she would in all events consent to have the judgment sought by her credited with the sum stated, but only that "if said judgment heretofore entered be set aside as hereinafter prayed, and if judgment against said defendant railroad company be entered in her behalf for the sum of three thousand ($3,000.00) dollars as hereinafter prayed, then said judgment shall be immediately credited, by direction of the court, with said sum of $1,000.00 heretofore paid as aforesaid." Neither the verdict nor the charge of the court is before us, but the jury may have had in mind that she was entitled to two thousand dollars as damages, and, having set aside the other judgment, have found in her favor one thousand dollars in the instant case, knowing that the amount of their finding, plus the other one thousand dollars, would give her the amount to which her injuries entitled her. We find no error in the judgment dismissing on general demurrer the motion in arrest.
Judgment affirmed. All the Justices concur.